The opinion
Robinson, J., dissenting. The majority opinion says: “Appellant earnestly insists that since no act of sexual intercourse took place or was attempted by him, he could not be convicted under the above section of the statute (Ark. Stat. § 41-3406). We do not agree.” Thus the majority holds that notwithstanding no sexual intercourse took place or was attempted, the defendant is guilty of carnal abuse; but significantly no authority is cited to sustain this position.
I agree with counsel for the defendant; there can be no carnal abuse within the meaning of our statute without at least an attempt to have carnal knowledge of the female. Carnal knowledge and carnal abuse are well known legal phrases defined by the courts many times.
In support of the majority opinion there is cited Lee v. State, 21 Ala. App. 91 , 13 So. 2d 583 . The Alabama statute on carnal abuse is not the same as ours. The statute of that state provides: “Any person who has carnal knowledge of any girl under twelve years of age, or abuses such girl in the attempt to have carnal knowledge of her, shall, on conviction, be punished . . . etc”. Code of Alabama 1940, Title 14, § 398. It will be seen at once that it is a violation of the Alabama statute for one to “abuse such girl in the attempt to have carnal knowledge of her”. Conceivably one could violate that statute merely by proposing sexual intercourse to a girl under 12 years of age. In any event, the Alabama court found there had been an attempt by tbe defendant to have carnal knowledge of tbe little girl; bnt in the case at bar, the majority opinion in effect says that even though there was no attempt to have sexual intercourse, the defendant is guilty of carnal abuse.
Then the majority gives emphasis to the word “unlawfully” in our statute and attempts to distinguish Curtis v. State, 89 Ark. 394 , 117 S. W. 521 , on that ground. But our court has heretofore dealt with the word “unlawfully” in the statute and has held that the word was only intended to exclude from the operation of the act those persons married to females under 14 years of age. In Plunkett v. State, 72 Ark. 409 , 82 S. W. 845 , Mr. Justice Wood speaking for the court said: “The statute under which appellant was indicted is as follows: ‘Every person convicted of carnally knowing or abusing unlawfully any female person under the age of 16 years shall be imprisoned in the penitentiary for a period of not less than 5 nor more than 21 years’. Sand. & H. Dig., § 1865.” (The quoted statute is identical with Ark. Stat. § 41-3406 except the punishment is different.) Continuing, Judge Wood said: “The legislature intended by this enactment to make it a felony for any person to carnally know or abuse any female under the age of 16 years, except in cases of marriage, either with or without her consent. Our statute makes it lawful for females to marry at the age of 14 years. Sand. & H. Dig., § 4907. And the word ‘unlawfully’ was used in the criminal statute under consideration with reference to the above provision of the civil statute, and to except those who came within it. If this was not the purpose of the use of the word ‘unlawfully’ then it had no purpose, and the legislature was engaged in putting a foolish conglomeration of words into a meaningless sentence.”
That brings us to the question of just what is “carnal abuse”, the crime of which the defendant has been convicted. We do not have to look to our sister states for a definition. Our court has said in plain, unequivocal words just what is meant in our statute by carnal abuse. In Curtis v. State, supra, the indictment charges: “the said Jesse Curtis in the county and state aforesaid, on the 15th day of December, A. D. 1906, unlawfully and feloniously did make an assault in and upon one Bertha Williams, a female child under the age of consent, to-wit, of the age of fifteen (15) years, and her, the said Bertha Williams, unlawfully and feloniously did carnally know and abuse.” The defendant moved to require the state to elect as between the charge of carnal knowledge and carnal abuse. The motion was overruled. This court said: “the ruling of the court in overruling the demurrer and refusing to require the prosecuting attorney to elect was correct. The indictment charged but a single offense. Carnal abuse and carnal knowledge, as used in the statute, are synonymous terms.” Certainly there can be no dispute about the meaning of carnal knowledge; it means sexual intercourse. Wharton’s Criminal Law 12th Ed. § 685; see also Words mid Phrases, Vol. 6, pages 160-2; citing many cases defining carnal knowledge. Carnal abuse is defined in Carothers v. State, 75 Ark. 574 , 88 S. W. 585 . Chief Justice Hill in referring to % 2008 of Kirby’s Digest which is the same as our present statute on carnal abuse with the exception of the penalty, said: “The fact of sexual intercourse with a female under 16 years of age, with or without consent, whether obtained by force or from lust, constitutes the crime denounced by this statute.”
Undoubtedly counsel for the defendant in the case at bar relied on our cases in which this court has said that other indictments for all practical purposes identical with the one under consideration here charged but one offense, and that carnal knowledge and carnal abuse within the meaning of our statute are synonymous terms. Defendant’s attorney in all probability depended on the well-established rule that sexual intercourse is ap essential element of carnal knowledge, and the ruling of our court that carnal abuse is synonymous with carnal knowledge, and therefore did not put on any evidence whatever in the trial of the case. Being confident that the state had not proven the charge according to the decisions of this court, he stood on his motion for a directed verdict of not guilty.
Of course the defendant according to the evidence was guilty of a grievous offense and he violated the law of this state as it existed at the time of the commission of the act; but in my opinion he is not guilty of the charge for which he was tried. The legislature has recognized the fact that our laws were inadequate for the kind of situation presented here and passed Act No. 94 of 1953. Section 3 of the Act specifically refers to and makes unlawful the acts shown in this case to have been committed by the defendant, but the penalty is fixed at not more than three years in the penitentiary. If the legislature had considered that the carnal abuse statute then existing applied to acts as shown by the evidence here, there would have been no need for that portion of Sec. 3 dealing with such acts. Section 7 of the Act of 1953 states: “It has been found and declared by the General Assembly of Arkansas that the existing laws pertaining to molestation, enticement, abuse, and indecent fondling of minors are now inadequate . . . etc.”
It is my firm opinion that the acts shown by the evidence to have been committed by the defendant do not constitute the crime of carnal abuse according to the law of this state as it has existed for over 100 years. I therefore respectfully dissent.
Justice George Rose Smith joins in this dissent.